SUPREME COURT
Media Release
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Stephen P. Armitage
Staff Attorney
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Cases decided May 15, 2014
State of Oregon v. Mark N. Babson, (TC 09C41582; 09C41583; 09C41584; 09C41593;
09C41594; 09C41581) (CA A144037 (Control); A144038; A144039; A144042; A144043;
A144345) (SC S060455 (Control); S060610; S060376)
On review from the Court of Appeals in an appeal from Marion County
Circuit Court, Jamese Lou Rhoades, Judge. 249 Or App 278, 279 P3d 222 (2012). The
decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed
in part and reversed in part, and the case is remanded for further proceedings. Opinion of
the Court by Chief Justice Thomas A. Balmer.
Today, the Oregon Supreme Court unanimously upheld a legislative
guideline that prohibits the use of the state capitol steps between 11:00 p.m. and 7:00 a.m.,
except when legislative hearings or floor sessions are taking place. The Court remanded
the case, however, for additional testimony about whether that guideline was enforced in a
way that impermissibly restricted the expression and assembly rights of a group of
protesters conducting a peace vigil.
In November 2008, the defendants held an around-the-clock vigil on the
steps of the state capitol building to protest the deployment of Oregon National Guard
troops to Iraq and Afghanistan. During that vigil, which continued into February 2009, the
state police cited the defendants for second-degree criminal trespass when they remained
on the capitol steps after 11:00 p.m. The defendants' presence on the steps violated a
Legislative Administration Committee (LAC) guideline that prohibited overnight use of
the steps between 11:00 p.m. and 7:00 a.m., except when legislative hearings or floor
sessions were taking place. At trial, the defendants sought testimony about the guideline
and its enforcement from the two legislators who co-chaired the LAC, but the trial court
denied the defendants' request. After hearing other testimony, the trial court found the
defendants guilty.
The defendants appealed, arguing that the guideline violated their rights to
free expression under Article I, section 8, of the Oregon Constitution and the First
Amendment to the United States Constitution. They also argued that the guideline violated
their rights to assemble, instruct representatives, and apply for redress of grievances under
Article I, section 26, of the Oregon Constitution. The Court of Appeals held that the
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guideline itself did not violate Article I, section 8, or Article I, section 26, but the court
remanded the case to the trial court to allow the defendants to question the legislator
co-chairs of the LAC about enforcement of the guideline. If the guideline had been
enforced against the defendants because they were engaged in speech or activities
protected under Article I, section 26, that court said, it would be unconstitutional as applied
to them. Because of the potential to resolve the defendants' claims under the state
constitution on remand, the Court of Appeals determined that it was premature to address
the defendants' arguments under the First Amendment.
In a unanimous opinion by Chief Justice Thomas A. Balmer, the Court
agreed with the Court of Appeals. The Court held that the guideline as written does not
violate Article I, section 8, or Article I, section 26, of the Oregon Constitution. The Court
then examined whether the guideline, as it was enforced against the defendants, was a
permissible restriction on the time, place, and manner of their expression. In undertaking
that analysis, the court considered how the law was applied to determine whether the
enforcement was directed at the content or the expressive or otherwise protected nature of
the defendants' activities, advanced legitimate state interests without restricting
substantially more speech or assembly than necessary, and provided ample alternative
opportunities to communicate the intended message and to assemble.
The Court concluded that enforcement of the guideline advanced legitimate
government interests in safety, security, and aesthetics without restricting substantially
more speech or assembly than necessary. The Court also concluded that the defendants
had ample alternative opportunities to communicate their message and to assemble. The
Court remanded the case, however, to permit the defendants to question the co-chairs of the
LAC about their role, if any, in enforcing the guideline against the defendants because that
evidence could demonstrate that the enforcement was impermissibly directed at their
expression or their assembly.
In reaching that conclusion, the Court examined the Debate Clause, Article
IV, section 9, of the Oregon Constitution, and held that legislative members who
participate in or specifically direct enforcement of a law against particular individuals may
be questioned about that conduct because it is not protected under the Debate Clause. The
Court cautioned that the fact that limited inquiries of legislators are permitted in a case such
as this, notwithstanding Article IV, section 9, does not countenance fishing expeditions or
harassment of legislators by parties in civil or criminal matters. Because the defendants'
state law claims were unresolved, the Court declined to address their First Amendment
argument.
Charles Noble et al. v. Department of Fish and Wildlife et al., (ODFW 700142) (CA
A140936) (SC S060518)
On review from the Court of Appeals in a judicial review of a final order of
the Oregon Department of Fish and Wildlife. The decision of the Court of Appeals and the
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Final Order on Reconsideration of the Oregon Department of Fish and Wildlife are
reversed, and the case is remanded to the Oregon Department of Fish and Wildlife for
further action. Opinion of the Court by Justice Richard C. Baldwin.
Today, the Oregon Supreme Court reversed the Oregon Department of Fish
and Wildlife's (ODFW's) approval of fishways at two small, privately maintained dams on
a small tributary of Beaver Creek and remanded to that agency for further action. The
Court concluded that the approvals were erroneous because they were based on an
implausible interpretation of an ODFW rule.
The fishway approvals were challenged by petitioners Charles and Deborah
Noble, who live upstream of the dams and who wish to have native migratory fish return to
their portion of the stream. Petitioners argued, among other things, that the approvals were
inconsistent with an ODFW rule, OAR 635-412-0035(2)(a), that requires fishways at
artificial obstructions on streams that are inhabited or historically inhabited by native
migratory fish to provide fish passage "at all flows within the design streamflow range."
At a hearing on the matter, petitioners established that ODFW had approved the fishways
without calculating the stream's "design streamflow range" or making a specific
determination that it provided passage at all flows within that range.
ODFW argued that, because the fishways at issue were "channel-spanning"
fishways, a specific determination about whether passage was provided within the "design
streamflow range" was unnecessary. That was so, ODFW argued, because such fishways
provide passage over the top of the dam whenever the stream is flowing. Essential to that
argument, however, was the assumption that, for purposes of the rule, "flow" and
"streamflow" pertains only to water flowing over the dam, and does not include water that
flows downstream through outlet pipes in the dam or water trapped behind the dam and lost
to evaporation or seepage. Although petitioners argued that "streamflow" must include all
water in the stream system, ODFW rejected that interpretation of the term in favor of its
own, and concluded that the fishways necessarily provided passage at all flows within the
design streamflow range and that, as such, its approval of the fishways complied with OAR
635-412-0035(2)(a).
On petitioner's petition for judicial review, the Court of Appeals affirmed,
holding that ODFW's interpretation of the terms "flow" and "streamflow" in its own rule
was plausible and that that is all that is required under the deferential standard that courts
must apply when reviewing an agency's interpretation of its own rules. Petitioners
thereafter sought review by the Oregon Supreme Court.
In a unanimous opinion authored by Justice Richard C. Baldwin, the Court
reversed and remanded for further action. The Court agreed with the Court of Appeals that
ODFW's interpretation of its own rule must be affirmed unless it is implausible, i.e., if it is
inconsistent with the wording of the rule, or the rule's context, or any other source of law.
The Court concluded, however, that ODFW's interpretation was not plausible because its
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uniform application would conflict with the standard expressed in another rule, OAR
635-412-0020(1), that fish passage that meets the biological life cycle needs of the native
migratory fish that historically were present at the site be provided. Given that ODFW's
interpretation of OAR 635-412-0035(2)(a) was implausible, the Court concluded, its
rationale for determining whether the fishway provided passage within the design
streamflow range was erroneous. The Court therefore reversed ODFW's approvals of the
fishways and remanded to that agency to determine whether the fishways complied with
OAR 635-412-0035(2)(a), under a correct interpretation of that rule.
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